By
consent of learned advocates of the parties, the appeal is finally heard and is
being disposed of by this judgment.

The
short question involved in this appeal centers round the jurisdiction of the Labour
Court functioning under the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as
`the Act' for short) regarding entertaining of complaints filed under Section
28(1) of the Maharashtra Act in connection with contemplated discharge or dismissal
of the employees alleged to be resorted to by the employer by way of unfair labour
practice, as mentioned in Item 1 of Schedule IV of the Maharashtra Act. The Labour Court in which the complaints were filed
took the view that such complaints were not maintainable as the actual orders
of discharge or dismissal were yet not passed by the employer.

The
learned Single Judge of the Bombay High Court confirmed that view, but the
appellate Bench of the High Court allowed the writ appeal filed by the respondent-workmen
and took a contrary view. That is how the employer is before us in this appeal.

BACKGROUND
FACTS

----------------
A few relevant facts are required to be noted at the outset. The predecessor of
the present appellant-company, Hindustan Lever Limited, the Tata Oil Mills
Company Limited served chargesheets on Respondent Nos.1 to 9 for certain
alleged misconduct. Respondent Nos.1 to 9 instituted Complaint (ULP) Nos. 90 to
98 of 1989 before the Presiding Officer, First Labour Court, Bombay, alleging
therein, inter alia, that the appellant's predecessor company had engaged in
commission of unfair labour practices referred to in Item 1 of Schedule IV of
the Maharashtra Act. It was the case of the respondents in the said complaints
that in pursuance of the show-cause notices, inquiry was being conducted and
they apprehended that their services would be terminated. The respondents also
filed applications for interim relief under Section 30(2) of the Maharashtra
Act seeking interim injuction restraining the employer-company from continuing
the unfair labour practices complained of and from terminating the services of
the respondents. The Labour
Court passed an ex parte
injunction restraining the employer-company from terminating the services of
the respondents.

The
employer-company filed its written statements in these complaints and among
others it was contended that complaints themselves were not maintainable and
were premature and the Labour Court had no jurisdiction to proceed with such
complaints as jurisdiction of the Labour Court could not be invoked under Item
1 of Schedule IV of the Maharashtra Act as long as the proceedings commenced by
the employer-company were not terminated by orders of discharge or dismissal of
the concerned respondents. The employer-company also resisted the complaints on
merits.

The Labour Court by its order dated August 10, 1989, upheld the preliminary objection
of the employer-company and held that the complaints were not maintainable at
that stage. The Labour
Court followed the
decision of the learned Single Judge of the High Court sitting at Nagpur in the case of Divisional
Commissioner, M.S.R.T.C. vs. Presiding Officer Industrial Court of Maharashtra, Nagpur & Anr. (1989 Mah. L.J. 798), which had taken a similar
view.

The
respondent-workmen filed Writ Petition No. 2286 of 1989 under Article 226 of
the Constitution of India. The learned Single Judge of the High Court summarily
dismissed the same on August
21, 1989.

The
respondents carried the matter before the Division Bench of the High Court in
appeal, being Appeal No. 952 of 1989. The Division Bench consisting of M.C. Pendse
and S.N. Kapadia, JJ. allowed the said appeal by its decision dated March 6, 1992, wherein Pendse, J. speaking for
the Division Bench, took the view that the respondents' complaints were not
premature and the Labour
Court had
jurisdiction to entertain such complaints filed before the actual orders of
dismissal or termination were passed by the employer. The order dated August 10, 1989, passed by the Presiding Officer,
First Labour Court, Bombay, was set aside and the proceedings
were remitted back to the First Labour Court, Bombay for disposal of the complaints on merits.

The
employer-company filed Special Leave Petition (C) No. 9740 of 1992 in this
Court challenging the aforesaid decision of the Division Bench of the High
Court. During the pendency of this special leave petition, by I.A. No. 4 of
1995, the present appellant-company i.e. the Hindustan Lever Limited, applied
to be substituted in place of the original petitioner, the Tata Oil Mills
Company Limited, on the ground that the original petitioner had merged with M/s
Hindustan Lever Limited. The said I.A. was allowed and that is how the present
appellant-company has prosecuted this appeal by special leave. The Employer's
Federation of India accompanied by M/s Blue Star Limited, also filed I.A. No. 3
of 1992 seeking permission of this Court for intervention as they were
interested in supporting the petitioner-company in the special leave petition.
That application for intervention was also allowed. The intervenors have filed
their written submission in support of this appeal. They have also appeared
through their learned counsel who was heard in this appeal.

RIVAL
CONTENTIONS

Shri Pai,
learned Senior Counsel, appearing for the appellant-company and the learned
counsel for the intervenors contended that the Division Bench of the High Court
was in error in taking the view that the complaints filed by the
respondent-workmen were maintainable even prior to the passing of the dismissal
or discharge orders, as the case may be, and that the Labour Court had no
jurisdiction under the Maharashtra Act to proceed with such premature
complaints. In this connection, the learned counsel submitted that a mere look
at Item 1 of Schedule IV shows that the complaints of unfair labour practice in
connection with the activities mentioned therein on the part of the employer
necessarily contemplated final discharge or dismissal orders. They submitted
that Section 28(1) lays down the period of limitation for filing complaints
before the Labour Court. The said period has to run from
the date of alleged occurrence and, therefore, the alleged unfair labour
practice must occur by way of dismissal or discharge before such complaint can
be filed. It was next contended that though the Act deals with prevention of
unfair labour practices, nowhere in the body of the Act in any of the sections
the word `Prevention' is mentioned. According to the learned counsel, the
Division Bench of the High Court was in error in taking the view that unfair labour
practice is not a penal offence under the Act. Section 48 of the Maharashtra
Act made such unfair labour practice penal. That the Labour Court under Section
30(2) could pass appropriate interim order restraining the employer from
enforcing on calling upon the employer to withdraw temporarily the alleged
unfair labour practice of dismissal or discharge of employee and it was not as
if after discharge or dismissal, such interim relief could not be granted in an
appropriate case by the Labour Court. Reliance was also placed on the decision
of this Court in the case of Chanan Singh vs. Registrar, Co-operative
Societies, Punjab & Ors. (1976 (3) SCR 685) for submitting that even though
a chargesheet is served by the employer on the concerned employee, there is
still a possibility that it may not actually culminate into any discharge or
dismissal and, therefore, complaint against proposed dismissal or discharge
would be premature.

On the
other hand, the learned counsel for the respondent-employees vehemently
submitted that the Maharashtra Act itself is enacted for prevention of unfair labour
practices, as enumerated in the Schedules and such labour practices on the part
of the employers or the trade unions of employees, as mentioned in Schedules
II, III and IV, could be prevented in appropriate cases by the concerned Courts
functioning under the Maharashtra Act, which would necessarily mean that such
complaints could be filed prior to the actual commission of the final act of
the unfair labour practice complained of. The submission of the appellant's
counsel would make the very scheme of preventing unfair labour practice
inoperative and otios. That the relevant provisions of the Maharashtra Act clearly
contemplate filing of complaints not only against the final act of discharge or
dismissal of employees by way of unfair labour practice, but even at stages
prior to the final stage where the employer completes such an exercise. That
such was the view taken years back by the Full Bench of the Maharashtra Industrial Court and which was followed by all
Courts in Maharashtra functioning under the Maharashtra
Act.

That
the view taken by the Division Bench of the High Court was in consonance with
the scheme of the Act and fructified the said scheme. That it is a social
legislation hence a liberal interpretation should be placed on the scheme of
the Act, with a view to subserve the purpose for which Maharashtra Act was
enacted. That the provisions of the Industrial Disputes Act fell short of the
achievement of goal of prevention of unfair labour practices. This was sought
to be achieved by the Maharashtra Legislature by enacting the provisions of the
Maharashtra Act and consequently the interpretation placed by the Division
Bench of the High Court on the relevant provisions of the Act and the final
conclusion to which it reached deserve to be upheld.

OUR
CONCLUSIONS AND THE REASONS FOR THE SAME

Having
given our anxious consideration to the rival contentions, we have reached the
conclusion that the decision of the Division Bench of the Bombay High Court
taking the view that complaints could be filed by the workmen apprehending
discharge or dismissal by way of unfair labour practice as contemplated by the
relevant clauses of Item 1 of Schedule IV of the Maharashtra Act, even prior to
the actual passing of orders of discharge or dismissal is well sustained on the
scheme of the Act. We now proceed to elaborate our reasons for the aforesaid
conclusion.

Before
we deal with the relevant provisions of the Maharashtra Act, it would be
necessary to note that in the State of Maharashtra, prior to the passing of the Maharashtra Act, two Acts
governing the relations between the employers and the employees in industries
were already holding the field. One Act was the Bombay Industrial Relations
Act, 1946 (`B.I.R. Act' for short) which applied to certain notified industries
under the Act. Various protections were given under the B.I.R. Act to the
workmen covered by the said Act. But there was no provision regarding
prevention of unfair labour practices either on the part of the employers or on
the part of the unions of employees. There was also a Central Act, Industrial
Disputes Act, 1947 (`I.D. Act' for short) applicable to industries which were
not covered by the B.I.R Act. The Maharashtra Act was passed by the legislature
on February 1, 1972, being Maharashtra Act 1 of 1972.
By that time industries which were covered by the I.D. Act, which was a Central
Act, also did not have the benefit of any provision regarding prevention of
unfair labour practices. Under the I.D. Act provision was made for reference by
an appropriate Government of any industrial dispute between the employers and
the employees for adjudication of competent Industrial or Labour Court, as the case may be. The
"Industrial Dispute" as defined by Section 2(k) of the I.D. Act could
be referred for adjudication to the competent authority as per Section 10, if
the persons applying for reference represented majority of each party as laid
down by Section 10(2). "Industrial Dispute" as defined by Section
2(k) of the I.D. Act, 1947 provides as under :- " `Industrial Dispute'
means any dispute or difference between employers and employers, or between
employers and workmen, or between workmen and workmen, which is connected with
the employment or non-employment or the terms of employment or with the
conditions of labour, of any person; " Only with effect from 1.12.1965,
Section 2(A) was inserted in the I.D. Act wherein even an individual workman
could raise an industrial dispute in connection with his discharge or dismissal
or otherwise termination of service. For all other types of industrial
disputes, a majority of workmen had to support the dispute before the
appropriate Government could refer it for adjudication of competent Court.
However, in either case, reference of such industrial dispute had to be made by
the appropriate Government under Section 10 of the I.D. Act. There was no
provision for reference of any industrial dispute under the Central Act, for
preventing any unfair labour practice, by the time the Maharashtra Act saw the
light of the day. It is, of course, true that by an amendment to the Industrial
Disputes Act Chapter V(c) was added w.e.f. August 2, 1984, which deals with unfair labour
practice. The "Unfair Labour Practice" as defined by the I.D. Act in
Section 2(ra) means `any of the practices specified in the Fifth Schedule'.
When we turn to the Fifth Schedule to the I.D. Act, we find the cataloguing of
unfair labour practices on the part of the employers, the trade unions of the
employers and on the part of the workmen and trade unions of workmen, which are
almost parimateria with lists of unfair labour practices on the part of the
employers, on the part of the trade unions and general unfair labour practices
on the part of the employers as found in Schedules II, III and IV of the Maharashtra
Act.

However,
even the aforesaid amended provisions of the I.D. Act concerning unfair labour
practice nowhere provide for any reference of industrial dispute in connection
with such unfair labour practice on the part of the employers which can entitle
the workmen or a body of workmen to seek a reference for adjudication or for
its prevention by any competent court under the I.D. Act, and all that a
workman can do is to wait till the order of discharge or dismissal is passed
and then he can raise a dispute under Section 2(A) in connection with his
dismissal or discharge and if such dispute is referred by the appropriate
Government for adjudication of the Labour Court which is entitled to adjudicate
upon such dispute as per the residuary Item 6 of Schedule II to the I.D. Act,
then in such a dispute it can be shown by the workman that his actual dismissal
or discharge was a result of unfair labour practice as laid down by clause 5 of
part 1 of the Fifth Schedule to the I.D. Act. However, there is no provision
for preventing any proposed discharge or dismissal by way of unfair labour
practice on the part of the employer as per the statutory scheme of the I.D.
Act, even after the insertion of Chapter V(c) in that Act. On the other hand,
more than a decade before the aforesaid amendment was brought in the I.D. Act,
which fell short of providing for prevention of unfair labour practice, the Maharashtra
Legislature as early as in 1972 enacted the Maharashtra Act providing for such
prevention. Similarly as noticed earlier the B.I.R. Act also did not offer any
remedy to the workmen to raise a dispute regarding prevention of any unfair labour
practice on the part of the employer who had set in motion machinery for
discharging or dismissing workmen by way of alleged unfair labour practice.
Thus, in the background of the then existing lacuna both under the Central Act,
i.e. the I.D. Act and the B.I.R. Act regarding any provision for prevention of
unfair labour practice, we will have to examine the scheme of the Maharashtra
Act which seeks to provide a remedy for prevention of such unfair labour
practices and to find out how it supplies the lacuna and tries to achieve its
goal.

SCHEME
OF THE MAHARASHTRA ACT

-----------------------------
The preamble of the Act lays down as under :- "An Act to provide for the
recognition of trade unions for facilitating collective bargaining for certain
undertakings; to state their rights and obligations; to confer certain powers
on unrecognised unions; to provide for declaring certain strikes and lock-outs
as illegal strikes and lock-outs; to define and provide for the prevention of
certain unfair labour practices; to constitute courts (as independent
machinery) for carrying out the purposes of according recognition to trade
unions and for enforcing the provisions relating to unfair practices; and to
provide for matters connected with the purposes aforesaid.

WHEREAS,
by Government Resolution, Industries and Labour Department, No. IDA.
1367-LAB-II, dated the 14th February 1968, the Government of Maharashtra
appointed a Committee called "the Committee on Unfair Labour
Practices" for defining certain activities of employers and workers and
their organisations which should be treated as unfair labour practices and for
suggesting action which should be taken against employers or workers, or their organisations,
for engaging in such unfair labour practices;

AND WHEREAS,
after taking into consideration the report of the Committee Government is of
opinion that it is expedient to provide for the recognition of trade unions for
facilitating collective bargaining for certain undertakings; to state their
rights and obligations; to confer certain powers on unrecognised unions;

to
provide for declaring certain strikes and lock-outs as illegal strikes and
lock-outs; to define and provide for the prevention of certain unfair labour
practices; to constitute courts (as independent machinery) for carrying out the
purposes or according recognition to trade unions and for enforcing provisions
relating to unfair practices;

and to
provide for matters connected with the purposes aforesaid; It is hereby enacted
in the Twenty-second Year of the Republic of India as follows:-
............." The preamble of the Act clearly indicates that the Maharashtra
Act is brought on the statute book with the avowed purpose of regulating the
activities of trade unions and for preventing certain unfair labour practices
both on the part of unions of employees as well as the employers. As laid down
by Section 2(3) of the Act, the Act has to apply to the industries to which
B.I.R. Act, for the time being applies and also to any industry as defined in
clause (j) of Section 2 of the I.D. Act and also to the State Government which
in relation to any industrial dispute concerning such industry is the
appropriate Government under that Act. Thus, the Act sought to supplement and
cover the field for which the concerned industries governed by the then I.D.
Act and B.I.R. Act did not get any coverage and that field was obviously
amongst others the field pertaining to prevention of unfair labour practices as
defined by the Act.

"Unfair
labour practices" as per Section 3(16) mean unfair labour practices as
defined in Section 26. When we turn to Section 26, we find that it occurs in
chapter VI dealing with unfair labour practices. It provides that in this Act,
unless the context requires otherwise, "unfair labour practices" mean
any of the practices listed in Schedules II, III and IV. That takes us to the
concerned Schedules.

Schedule
II of the Act deals with unfair labour practices on the part of the employers.

Schedule
III of the Act deals with unfair labour practices of trade unions of employees
and then comes Schedule IV which deals with general unfair labour practices on
the part of the employers. As we are directly concerned with Item 1 of Schedule
IV of the Act, it is necessary to reproduce the said item with all its clauses
at this stage.

SCHEDULE
IV General Unfair Labour Practices on the Part of employers

1. To
discharge or dismiss employees-

(a) by
way of victimisation ;

(b) not
in good faith, but in colourable exercise of the employer's rights;

(c) by
falsely implicating an employee in a criminal case on false evidence or on
concocted evidence;

(d) for
patently false reasons;

(e) on
untrue or trumped up allegations of absence without leave;

(f) in
utter disregard of the principles of natural justice in the conduct of domestic
enquiry or with undue haste :

(g) for
misconduct of a minor or technical character, without having any regard to the
nature of the particular misconduct or the past record of service of the
employee, so as to amount to a shockingly disproportionate punishment." A
mere look at Item 1 of Schedule IV shows that it would be a general unfair labour
practice on the part of the employer to discharge or dismiss employees on any
of the grounds mentioned in clauses (a) to (g) of this Item. On this aspect
there is no dispute between the parties. The moot question is whether the sweep
of the item can cover any of the alleged general unfair labour practices on the
part of the employer, before the employer concerned actually discharges or
dismisses the employee on any of the grounds enumerated in clauses (a) to (g).
Let us take an illustration to see how this item operates. If an employer
discharges or dismisses an employee by way of victimisation it would be a
complete unfair labour practice on his part as contemplated by clause (a) of
Item 1 of Schedule IV. As we have seen above, the Act is enacted with a view to
prevent such unfair labour practice. Therefore, the question squarely arises as
to how such an unfair labour practice of discharge or dismissal of an employee
by way of victimisation can be prevented. If it is to be prevented, it has to
be prevented from taking effect or getting completed.

Therefore,
the intervention of the Labour
Court can be sought
where the concerned general unfair labour practice on the part of the employer
to discharge or dismiss an employee by way of victimisation has not resulted
into its culmination but it is in pipeline or process. Under the standing
orders governing the concerned industries, before an employee can be discharged
or dismissed on the ground of any misconduct, departmental enquiry has to be
held.

Consequently,
taking the initial step towards the direction of discharging or dismissing of
any employee on the ground of any misconduct by issuing a chargesheet can be
said to be the first action taken by the employer towards such ultimate
discharge or dismissal of an employee. It can then be said that the process of
alleged unfair labour practice on the part of the employer to discharge or
dismiss an employee on ground (a) mentioned in Item 1 of Schedule IV is started
or has got initiated or is triggered off by the employer. If an employee can
make out a strong prime facie case for interdiction of such a process, he can
legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting
fructified or completed.

In his
connection, it is necessary to note that the general unfair labour practice on
the part of the employers as mentioned in Item 1 of Schedule IV pertains to
different types of objectionable actions based on grounds which are indicative
of unfair labour practices and any action based on such grounds with a view to
discharge or dismiss an employee is considered by the Act to be an unfair labour
practice on the part of the employer.

The
Division Bench of the High Court for coming to its conclusion has heavily
relied upon the words "to discharge or dismiss employees" as found in
Item 1 of Schedule IV. We find that the term "to discharge or
dismiss" does indicate even attempted action towards such discharge or
dismissal.

In
this connection, we may profitably refer to the meaning of the term
"to" as found in various dictionaries as the said term is not defined
by the Maharashtra Act.

In
Concise Oxford Dictionary, New Seventh Edition, Oxford University Press, at
page 1124, one of the meanings of the word "to" is mentioned as
under:- "In the direction of (place, person, thing, condition, quality,
etc.; with or without implication of intention or of arrival..." In
Collins English Dictionary, at page 1525, one of the meanings of the word
"to" is as under:- "used to indicate the destination of the
subject or object of an action: he climbed to the top." In Words and
Phrases, Permanent Edition, Volume 41A, at page 418, one of the meanings of the
word "to" is amplified as under:- "The word "to" means
indicating anything regarded as a terminal point or limit in the direction of
which there is movement and at which there is arrival or in the direction of
which there is movement or tendency without arrival." In Stroud's Judicial
Dictionary, 5th Edition, volume 5, at page 2646, one of the meanings of the
word "to" is mentioned as under:- "(3) "To" wills
often mean "towards." The plaintiff effected a marine policy, subject
to rules one of which was that ships were not to sail from any port on the east
coast of Great Britain "to" any port in the
Belts between December 20 and February 15. The plaintiff's vessel sailed on
February 8 for a port in the Belts, and was lost; held, that the rule in
question was a warranty and not an exception; and that the word "to"
in the rule meant "towards" and not "arriving at" (Colledge
v. Harty 6 Ex. 205) (4) "To or towards": see R. v. M'Carthy [1903] 2
Ir. R. 156, cited INTIMIDATE." It becomes, therefore, obvious that general
unfair labour practice on the part of the employer to discharge or dismiss the
employee on any of the grounds listed in clauses (a) to (g) of Item 1 of
Schedule IV would include any step towards or in the direction of ultimate
discharge or dismissal of the employee on that ground and even before such
discharge or dismissal is finally arrived at. It is not possible to accept the
contention of the learned counsel for the appellant that discharge or dismissal
of any employee would only mean the confirmed act of discharge or dismissal on
any of these grounds and not a penultimate step taken by the employer concerned
in that direction on that ground.

Therefore,
on the express language of Item 1 of Schedule IV the general unfair labour
practice on the part of the employer "to" discharge or dismiss an
employee on any of the listed grounds would include both the final act of
discharge or dismissal of employee on any of these grounds as well as any
penultimate step taken towards that destination and object by starting the
process of disciplinary enquiry on giving the chargesheet to the employee
and/or suspending an employee pending or in contemplation of such enquiry and
all further steps during such departmental enquiry about which a complaint can
be made on permissible grounds.

It was
next vehemently contended by the learned counsel for the appellant that if the
very attempt on the part of the employer by initiating departmental proceedings
is tried to be covered by a complaint by the employee on any of the grounds
mentioned in clauses (a) to (g) of Item 1 of Schedule IV, then, some of the
clauses themselves would contra-indicate such a construction as they can be
applied only at the final stage where such discharge or dismissal of the
employee takes place. Clause (g) of Item 1 of Schedule IV was pressed in
service by way of illustration. It was submitted that before this clause can
apply it must be shown that the punishment given is shockingly disproportionate
to the charge and that such an eventuality would arise only when the punishment
in question has already been inflicted.

Now it
is obvious that at the stage when such a shockingly disproportionate punishment
is given, this clause would certainly get attracted, but that does not mean
that it could not be demonstrated even earlier, if there are facts available in
a case, that for a trifle or mere minor or negligible misconduct, the employer
proposes to discharge or dismiss the employee.

The
learned counsel for the respondents has rightly given an example where clause
(g) of Item 1 of Schedule IV can apply even prior to the final order of
discharge or dismissal of an employee. It was submitted that if the chargesheet
itself alleges that the worker-employee did not get up when the Officer entered
his office and, therefore, it was proposed to discharge the employee, even mere
reading of the chargesheet can be pressed in service for submitting that the
proposed enquiry is for imposing a punishment shockingly disproportionate to
the misconduct alleged in the chargesheet. Therefore, it is not as if when such
a grievance is made, the Labour
Court cannot be
approached for preventing such an unfair labour practice from getting
culminated and that the workman is to wait till such shockingly
disproportionate punishment actually comes to be imposed. Then there would be
nothing left to be prevented.

It
would be like bolting the doors of the stable after the horses have fled. We,
therefore, hold that on the express language of Item 1 of Schedule IV complaint
can be filed for the alleged unfair labour practice which is in the offing and
towards which a firm step is taken by the employer. It is in the light of the
aforesaid scheme of Item 1 of Schedule IV that we have to turn to the remaining
relevant sections of the Act.

Section
27 lays down as under:- "No employer or union and no employees shall
engage in any unfair labour practice." Thus there is total embargo on the
unions of the employees as well as the employees and also on the employer on
engaging in any unfair labour practice. Once it is found that Item 1 of
Schedule IV covers general unfair labour practices on the part of the employer
consisting of not only final discharge or dismissal of employee on any of the
grounds mentioned in Item 1 but also any action taken by initiating the process
towards such ultimate discharge or dismissal of the employee, Section 27 of the
Maharashtra Act gets attracted even at a prior stage when such unfair labour
practice is sought to be resorted to by the employer by engaging himself in
such an unfair labour practice. In other words, to take an illustration, if it
is alleged in a given case that the employer seeks to discharge or dismiss an
employee by way or dismiss an employee by way of victimisation and for that
purpose he has initiated the process of departmental enquiry by issuing the chargesheet
to the employee concerned, the employee concerned can legitimately urge that
the employer is guilty of such unfair labour practice in which he seeks to
engage himself and, therefore, the prohibition enshrined in Section 27 gets
squarely attracted against him. It is not as if that in such a case the
employer can be said to have engaged himself in any unfair labour practice of
discharging or dismissing the employee by way of victimisation only after the
ultimate stage is reached and the order of discharge or dismissal sees the
light of the day. The prohibition against engagement in any unfair labour
practice as mentioned in Section 27 will cover all stages from the beginning to
the end, when the process which is initiated by the concerned employer or the
union in connection with the alleged unfair labour practice starts and
ultimately terminates.

The
next Section which is relevant is Section 28(1) of the Maharashtra Act. Section
28 was pressed in service by both the sides for supporting their respective
contentions.

Section
28(1) contemplates types of complaints which can be filed under the Act. So far
as Item 1 of Schedule IV is concerned, the competent Court as per Section 7 of
the Act will be the Labour Court as the said section provides that it shall be
the duty of the Labour court to decide complaints relating to unfair labour
practices described in Item 1 of Schedule IV and to try offences punishable
under this Act, and the complaints regarding the rest of the unfair labour
practices can be dealt with by the Industrial Court under Section 5.

As per
Section 28(1) any complaint regarding the general unfair labour practice on the
part of the employer to discharge or dismiss employee on the grounds mentioned
in Item 1 of Schedule IV can be filed before the Labour Court.

Such a
complaint can cover both types of grievances against the employer; (1) that he
has engaged in any unfair labour practice and (2) or he is engaging in any
unfair labour practice. The learned counsel for the appellant submitted that
though the Act is enacted with a view to prevent such unfair labour practices,
there is no whisper about such prevention in any of the operative sections of
the Act. This submission cannot be accepted in the light of the express
language of section 28(1) and the types of complaints contemplated by it, as
aforesaid. As per Section 28(1) of the Maharashtra Act an employee can file a
complaint against the employer on the ground that the employer has engaged in
unfair labour practice to discharge or dismiss employee by way of victimisation
etc. For the purpose of illustration, we may take clause 1 of Item 1 of
Schedule IV to highlight the scheme of this section. If an employee files a
complaint before the Labour Court alleging that the employer has engaged in
unfair labour practice to dismiss or discharge him by way of victimisation, it
would contemplate a completed act, namely, an order of discharge or dismissal
that might have been passed, because the term "has engaged"
represents a present perfect tense, meaning thereby an action which has got
completed in presenting. The learned counsel for the appellant could have
submitted with emphasis that the complaint could be filed on the ground of
alleged unfair labour practice on the part of employer to discharge or dismiss
an employee by way of victimisation only after the action was completed and the
discharge or dismissal was effected on that ground if Section 28(1) would have
contained only the words "has engaged". But the legislature has
conferred jurisdiction on the Labour Court
to entertain the complaints also on the additional ground that the employer is
engaged in any unfair labour practice. This clearly indicates a present
continuous action as it reflects a present continuous tense. That would include
a complaint regarding the employer, who at present is engaging in the alleged
unfair labour practice by way of victimisation. That would indicate actions
which are contemplated and in pipeline but which are still not finally
completed. If the learned counsel for the appellant is right that only the
final act of discharge or dismissal can be covered by the sweep of Section
28(1), then the terminology used by the Legislation "or is engaging in any
unfair labour practice" would be rendered totally redundant and otios, as
such a completed action would already stand covered by the earlier phrase
"has engaged in any unfair labour practice". Similar words are found
in Section 30(1) which deals with powers of the Courts and provides that where
the Court decides that any person named in the complaint has engaged in, or is
engaging in, any unfair labour practice, it may by its order give relief as
mentioned in clauses (a), (b) and (c) of that sub-section. A conjoint reading
of Section 28(1) and Section 30(1) clearly shows that complaint can be filed
for the alleged unfair labour practice as contemplated in Item 1 of Schedule IV
on any of the grounds mentioned therein, both at the stage where such final
orders of discharge or dismissal are passed on the concerned alleged grounds
and also at the stages prior to such final orders, once the employer is shown
to have taken a firm step in that direction by initiating departmental
enquiries with a view to ultimately discharge or dismiss the employee on any of
the alleged grounds and such enquiries are presently in progress or are
presently in offing. Then the employer can be said to be presently engaging in
any such unfair labour practice. It becomes obvious that the twin phrases `has
engaged' and `is engaging in' indicate not only the finished, complete or
continuous action but also an incomplete continuous action.

In
this connection, we may profitably look at what is said in Black's Law Dictionary,
6th Edition, at page 528, about the term "Engage", which reads as
under:- "To employ or involve one's self; to take part in; to embark
on." In Stroud's Judicial Dictionary, 5th Edition, at page 847, the term
"engaged in discharging" has been dealt with as under:- "A
lighter or craft is "engaged in discharging" ballast or goods, within
an exemption from dock dues, if she goes to the place of discharge in the dock
with the real intention of discharging there, although, from the place getting
too full to take the ballast or goods, the vessel has to depart without making
any discharge (London & India Docks Co. v. Thames Steam Tug, etc., Co.
(1909) A.C. 15)" It becomes, therefore, obvious that if an employer is
alleged to be engaged in discharging any employee then even before the actual
order of discharge is passed he can be said to be engaged in such discharge if
it is shown that an attempt is made towards such a discharge with an intention
to ultimately discharge the employee.

We may
also refer to Section 28(3), which empowers the concerned Court on receipt of
the complaint under Section 28(1) to cause an investigation into the said
complaint to be made by the investigating officer, if thought necessary and
direct that a report in the matter may be submitted by him to the Court, within
the period specified in the direction. Therefore, it is not as if that the
moment a complaint is filed the Labour Court can mechanically pass an order intercepting the proceedings
of any departmental enquiry. It can in appropriate cases even cause a
preliminary enquiry about the correctness of the allegations in the complaint
through the investigating officer.

Before
parting with Section 28(1) an argument submitted by the learned counsel for the
appellant is required to be noted. It was submitted that limitation for filing
complaints under Section 28(1) is to start from the date of occurence of unfair
labour practice and that date of occurrence of the alleged unfair labour
practice could be only the date when the final orders of discharge or dismissal
are passed by the employer and are challenged on any of the grounds mentioned
in Item 1 of Schedule IV. It is not possible to agree with this contention. As
we have already seen earlier, Item 1 of Schedule IV would cover in the sweep of
general unfair labour practice on the part of the employer even the initiation
of proceedings or taking any other firm step like suspension, towards discharge
or dismissal of the employee concerned, which can be challenged on the grounds
mentioned in Item 1 of Schedule IV. Such initiation of proceedings or firm
steps themselves would be the occurrence of the alleged unfair labour practices
and would give a cause of action to the complainant to file the complaint under
Section 28(1) within the period of limitation as laid down therein. It is not
as if that the occurrence of unfair labour practice can be only of one type,
that is, the final order of discharge or dismissal as assumed by the learned
counsel for the appellant. The nature of the order which the Court can pass on
such complaint is indicated by clauses (a), (b) and (c) of Section 30(1), which
read as under:- "30.(1) Where a Court decides that any person named in the
complaint has engaged in, or is engaging in, any unfair labour practice, it may
in its order - (a) declare that an unfair practice has been engaged in or is
being engaged in by that person, and specify any other person who has engaged
in, or is engaging in the unfair labour practice;

(b)
direct all such persons to cease and desist from such unfair labour practice,
and take such affirmative action (including payment of reasonable compensation
to the employee or employees affected by the unfair labour practice, or
reinstatement of the employee or employees with or without back wages, or the
payment of reasonable compensation), as may in the opinion of the Court be
necessary to effectuate the policy of the Act;

(c)
where a recognised union has engaged in or is engaging in, any unfair labour
practice, direct that its recognition shall be cancelled or that all or any of
its rights under sub-section (1) of Section 20 or its right under section 23
shall be suspended." Even this provision when read with Item 1 of Schedule
IV shows that after adjudication the Labour Court can declare that the concerned
employer not only has engaged in unfair labour practice, but is being engaged
in such unfair labour practice and such engagement in unfair labour practice
continues and has not ended. This also clearly indicates that the complaint can
be made regarding the alleged actions of the employer which amount to unfair labour
practice, but which have not yet finally culminated into ultimate orders but
are in the pipeline or are being attempted to be passed and proceedings are
initiated for passing such ultimate orders which are alleged to be contrary to
Item 1 of Schedule IV of the Maharashtra Act.

Sub-section
(2) of Section 30 of the Maharashtra Act lays down:- "In any proceeding
before it under this Act, the Court, may pass such interim order (including any
temporary relief or restraining order) as it deems just and proper (including
directions to the person to withdraw temporarily the practice complained of,
which is an issue in such proceeding), pending final decision :

Provided
that, the Court may, on an application in that behalf, review any interim order
passed by it." The learned counsel for the appellant submitted that even
if the final order of discharge or dismissal is passed by the employer by way
of victimisation as alleged by the employee, the Labour Court in the complaint
regarding such final order can pass interim orders of temporary relief or
restraining order. Still it would not rule out the possibility on the part of
the Labour Court of passing an interim order pending the domestic enquiry if
any of the grounds mentioned in Item 1 of Schedule IV is effectively pressed in
service by the employee against the employer. It is obvious that when the final
order of discharge or dismissal is passed and if it is found to be a result of
unfair labour practice as mentioned in clauses (a) to (g) of Item 1 of Schedule
IV, it is to be quashed and reinstatement is to be ordered by way of mandatory
relief. In such a case there would be no occasion of granting interim relief by
way of prohibitory order or a restraining order, as contemplated by sub-section
(2) of Section 30. Such a restraining order can be passed in a case where the
complaint is filed at a stage where the final orders of discharge or dismissal
are not passed on any of the grounds mentioned in Item 1 of Schedule IV. If
such a complaint is ruled out the provisions of Section 30(2) would be rendered
redundant and otios. When we keep in view the fact that as per Section 7 of the
Maharashtra Act, all the complaints pertaining to Item 1 of Schedule IV can be
filed only before the Labour Court and no other complaint regarding unfair labour
practice can be filed before the Labour Court, and once the Labour Court is
given the powers in appropriate cases of passing interim relief of restraining
orders as per Section 30(2) it would clearly indicate the legislative intention
that complaints regarding the proposed dismissal or discharge on any of the
grounds mentioned in Item 1 of Schedule IV could be filed before the Labour
Court. In such complaints the Labour Court in appropriate cases, in exercise of
its powers under Section 30 (2) can issue interim orders with a view to
preventing such alleged unfair practices from getting fructified. Thus Section
30(2) also highlights the legislative intent of providing an effective
machinery to prevent the finalisation of the alleged unfair practices which are
required to be nipped in the bud. If the orders of the Court whether final on
interim are not complied with by the party against whom such orders are passed,
it can be prosecuted under sub- section (1) of Section 48, which lays down as
under :

"48.(1)
Any person who fails to comply with any order or the Court under clause (b) of
sub-section (1) or sub-section (2) of Section 30 of this Act shall on
conviction, be punished with imprisonment which may extend to three months or
with fine which may extend to five thousand rupees." Having seen the
aforesaid relevant provisions, we may now consider the main contentions
canvassed by the learned counsel for the appellant. It was vehemently submitted
by the learned counsel for the appellant and also by the learned counsel for
the intervenors that the High Court was in error when it took the view that
unfair labour practice is not punishable under the Maharashtra Act. In this connection,
our attention was invited to Section 25-U of the Industrial Disputes Act which
reads as under:

"Penalty
for committing unfair labour practices. - Any person who commits any unfair labour
practice shall be punishable with imprisonment for a term which may extend to
six months or with fine which may extend to one thousand rupees or with
both." Our attention was also invited to Section 25-T of the Industrial
Disputes Act which reads as under :

"Prohibition
of unfair labour practice.

- No
employer or workman or a trade union, whether registered under the Trade Unions
Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice."
When we keep the relevant provisions of the Industrial Disputes Act concerning
unfair labour practices in view and compare these provisions with the
provisions of the Maharashtra Act, a clear difference becomes obvious. Section
25-T of the Industrial Disputes Act prohibits an employer or workman or a trade
union from committing any unfair labour practice. While so far as Section 27 of
the Maharashtra Act is concerned, it prohibits an employer or union or employee
from engaging in any unfair labour practice. Consequently the prohibition under
the Industrial Disputes Act is against the commission of unfair labour practice
which may include the final acts of such commission. While Section 27 of the Maharashtra
Act prohibits the concerned party even from engaging in any unfair labour
practice. The word `engage' is more comprehensive in nature as compared to the
word `commit'. But even that apart, Section 25-U provided for penalty for
committing unfair labour practice and mandates that whoever is guilty of any
unfair labour practice can be prosecuted before the competent court on a
complaint made by or under the authority of an appropriate Government under
Section 34(1) read with Section 25-U of the Industrial Disputes Act. So far as
the Maharashtra Act is concerned, there is no direct prosecution against a
party guilty of having engaged in any unfair labour practice. Such a
prosecution has first to be preceded by an adjudication by a competent court
regarding such engagement in unfair labour practice. Thereafter, it should
culminate into a direction under Section 30(1)(b) or it may be a subject matter
of interim relief order under Section 30(2). It is only thereafter that
prosecution can be initiated against the concerned party disobeying such orders
of the Court as per Section 48(1). Consequently, it cannot be said that the
Division Bench of the Bombay High Court was not right when it took the view
that the act of engaging in any unfair labour practice by itself is not an
offence under the Maharashtra Act while such commission of unfair labour
practice itself is an offence under the Industrial Disputes Act. However, this
aspect is not much relevant for deciding the controversy with which we are
concerned.

As we
have discussed above, the legislation intends to prevent commission of unfair labour
practices through the intervention of the competent court and for that very
purpose, the Act is enacted. This is clearly reflected by the provisions of
Section 28(1) and Section 30(1) of the Maharashtra Act.

As
already discussed earlier, it is trite to say that if `to discharge or dismiss
an employee by way of victimisation' is a general unfair labour practice on the
part of the employer as laid down by Item 1(a) of Schedule IV and if such an
unfair labour practice is to be prevented then action for such prevention has
to be taken prior to the ultimate commission of such unfair labour practice. It
is difficult to agree with the contention of the learned counsel for the
appellant that such prevention can be made only after the actual order of
discharge or dismissal of the employee is passed. At that stage there is no
question of preventing the commission of such unfair labour practice, but it
would be a case of setting aside or quashing such already committed unfair labour
practice. It is difficult to appreciate how a discharge or dismissal of an
employee by way of victimisation can be prevented after such discharge or
dismissal has already taken place. Once such an unfair labour practice is
completed and if final order is to be set aside it would amount to curing the
melody rather than preventing it. As the saying goes `prevention is better than
cure', and that is the very purpose of the Act. Or in other words, prevention
of commission of such unfair labour practice is the heart of the Act. The
interpretation tried to be put by the learned counsel for the appellant on the
relevant provisions of Item 1 of Schedule IV would result in stultifying the
very purpose and scope of the Act.

We may
also keep in view the fact that prevention of unfair labour practice, as per
the Act, is aimed not only against the employers, but also against the employees
and their trade unions, if they are alleged to engage themselves in any of the
unfair labour practice mentioned in Schedule III. Let us take illustrations of
unfair labour practice on the part of the trade unions as mentioned in Items 5
and 6 of Schedule III which read as under:

"5.
To stage, encourage or instigate such forms of coercive actions as willful
"go slow" squatting on the work premises after working hours or
"gherao" of any of the members of the managerial or other staff.

6. To
stage demonstrations at the residences of the employers or the managerial staff
members." It becomes obvious that if an employer files a complaint before
the Industrial Court under Item 5 or 6 of Schedule III that the Union is
seeking to stage, encourage on instigate such forms of coercive actions as
willful `go slow' or seeks to demonstrate at the residence of employers and if
such an action is to be prevented a complaint has to be filed before the actual
demonstration takes place or actual `go slow' policy is resorted to. Once such
an action takes place there would remain no occasion to prevent such an action
in good time. Consequently, on the same lines it cannot be said that unfair labour
practice on the part of the employer also cannot be prevented till the actual
unfair labour practice gets committed by him. We have also to keep in view that
the Maharashtra Act is a social welfare legislation and in interpreting such a
welfare legislation, such a construction should be placed on the relevant
provisions which effectuates the purpose for which such legislation is enacted
and does not efface its very purpose of prevention of unfair labour practice.

In
this connection, we may usefully turn to the decision of this Court in Workmen
of American Express International Banking Corporation v. Management of American
Express International Banking Corporation (1985 (4) SCC 71) wherein Chinnappa Reddy,J.,
in para 4 of the Report has made the following observations:

"The
principles of statutory construction are well settled. Words occurring in
statutes of liberal import such as social welfare legislation and human rights
legislation are not to be put in Procrustean beds or shrunk to Liliputian
dimensions. In construing these legislations the imposture of literal
construction must be avoided and the prodigality of its misapplication must be recognised
and reduced. Judges ought to be more concerned with the `colour', the `content'
and the `context' of such statutes (we have borrowed the words from Lord wilberforce's
opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out
that law is not to be left behind in some island of literal interpretation but
is to enquire beyond the language, unisolated from the matrix of facts in which
they are set; the law is not to be interpreted purely on internal linguistic
considerations.

In one
of the cases cited before us, that is, Surendra Kumar Verma v. Central
Government Industrial Tribunal-cum- Labour Court we had occasion to say.

Semantic
luxuries are misplaced in the interpretation of "bread and butter"
statutes. Welfare statutes must, of necessity, receive a broad interpretation.
Where legislation is designed to give relief against certain kinds of mischief,
the Court is not to make inroads by making etymological excursions."
Francis Bennion in its `Statutory Interpretation' Second Edition, has dealt
with the Functional Construction Rule in part XV of his book. The nature of
purposive construction is dealt with in Part XX at page 659 thus:

"A
purposive construction of an enactment is one which gives effect to the
legislative purpose by - (a) following the literal meaning of the enactment
where that meaning is in accordance with the legislative purpose (in this Code
called a purposive-and- literal construction), or (b) applying a strained
meaning where the literal meaning is not in accordance with the legislative
purpose (in the Code called a purposive-and-strained construction)." At
page 661 of the same book, the author has considered the topic of Purposive
Construction in contrast with literal construction. The learned author has
observed as under:

"Contrast
with literal construction Although the term `purposive construction' is not
new, its entry into fashion betokens a swing by the appellate courts away from
literal construction. Lord Diplock said in 1975:

`If
one looks back to the actual decisions of the [House of Lords] on questions of
statutory construction over the last 30 years one cannot fail to be struck by
the evidence of a trend away from the purely literal towards the purposive
construction of statutory provisions'. The matter was summed up by Lord Diplock
in this way- "... I am not reluctant to adopt a purposive construction
where to apply the literal meaning of the legislative language used would lead
to results which would clearly defeat the purposes of the Act. But in doing so
the task on which a court of justice is engaged remains one of construction,
even where this involves reading into the Act words which are not expressly
included in it." Following the aforesaid rule of construction, therefore,
we must hold that the interpretation of Item 1 of Schedule IV of the Maharashtra
Act as canvassed by the learned counsel for the appellant and the intervenors
would frustrate the very scope and ambit of the Maharashtra Act, in
effectuating the prevention of the alleged unfair labour practice. While on the
other hand, if a wider interpretation is placed on the relevant provisions of
Item 1 of Schedule IV, as discussed earlier, apart from not straining the
language which even may become permissible on the rule of purposive
construction, the said construction would fructify the very purpose for which
the Maharashtra Act was enacted.

Before
concluding this discussion, we may refer to the judgment of this Court in Chanan
Singh's case (supra) on which strong reliance was placed by the learned counsel
for the appellant. Sh. Pai submitted that when merely a show cause notice is
issued for taking action against an employee, if it is challenged in the Court,
it would be a premature challenge. We fail to appreciate how the aforesaid
decision can be pressed in service by the learned counsel for interpreting the
relevant provisions of Item 1 of Schedule IV of the Maharashtra Act. In the
aforesaid decision, this Court held that when a show cause notice is issued
against punishment, a writ petition under Articles 226 and 227 would be
premature as there would be no grievance of punitive action which can be
ventilated in the Court. This decision was based on the general principle that against
mere show cause notice, writ petition would be premature. The ratio of that
decision cannot be of any assistance for interpreting the express language of
Item 1 of Schedule IV of the Maharashtra Act read with its other relevant
provisions, which are meant to prevent the commission of unfair labour practice
by arming the appropriate Courts with jurisdiction to look into such
complaints. For all these reasons, therefore, it must be held that the Division
Bench of the High Court was perfectly justified in taking the view that a
contemplated action for dismissal or discharge of an employee on any of the
grounds mentioned in Item 1 of Schedule IV of the Maharashtra Act could be made
the subject-matter of complaint before the Labour Court under Section 28(1) of
the Maharashtra Act. We have to keep in view the fact that the Maharashtra Act
is in the field since more than two decades and even a Full Bench of the
Industrial Court, Maharashtra by its unanimous decision dated September 28,
1984 had taken the same view and on that basis numerous complaints were
entertained by the Labour Courts in Maharashtra over decades. It was only when
a learned Single Judge of the High Court sitting at Nagpur, by his decision
dated April 27, 1989 struck a discordant note that the present controversy
cropped up. In our view, no fault can be found with the reasoning adopted by
the Division Bench of the Bombay High Court for overruling the said contrary
decision of the learned Single Judge of the Bombay High Court sitting at Nagpur
in Writ Petition No. 2607 of 1988.

Mr. Pai,
learned senior counsel for the appellant, also argued that Item 1 of Schedule
II refers to the threat given by the employer to discharge or dismiss the
employees if they join the union. Thus, even a threat is considered to be an
unfair labour practice as per this Item. While, the unfair labour practice
mentioned in Item 1 of Schedule IV does not cover any threat but actual order
of discharge or dismissal. It is not possible to agree. The reason is obvious.
A mere threat to discharge or dismiss an employee if he joins a union by itself
may be an unfair labour practice as per Item 1(a) of Schedule II though the
threat might not have been translated into any attempt in the direction of
discharge or dismissal. Still, such a threat would constitute unfair labour
practice, which can be prevented by filing appropriate complaint before the
Industrial Court under Section 5 read with Section 28(1).

But if
the employer takes a concrete step towards discharging or dismissing an
employee on any of the grounds contemplated by Item 1 of Schedule IV, then it
would not be in the realm of mere threat but would be translated into an actual
action of taking a calculated step towards such alleged contemplated unfair labour
practice by serving chargesheet and starting departmental enquiry and/or
putting the employee under suspension with the ultimate object in view. Act
that stage the alleged unfair labour practice of engaging in discharging or
dismissing the employee on the grounds contemplated in Item 1 of Schedule IV
can be said to have taken place. It is obvious that if an employer merely
threatens the employee to discharge him by way of victimisation etc. and such a
threat is not followed by any attempt by way of starting departmental enquiry
or taking any other concrete step as aforesaid, such a simplicitor threat would
not get covered by Item 1 of Schedule IV. It would also not be covered by Item
1(a) of Schedule II, as it is not a threat to discharge or dismiss an employee
if he joins a union. For the purpose of attracting Item 1 of Schedule IV, apart
from mere threat, some concrete step like starting departmental enquiry has to
be taken by the employer before such an action can be brought in challenge by
the concerned employee on any of the grounds mentioned in Item 1 of Schedule
IV. Consequently, merely because the legislature has not repeated the
terminology of mere threat while enacting Items of Schedule IV it would not
mean that before the final order of discharge or dismissal is passed on any of
the grounds contemplated by Item 1 of Schedule IV, and only first step is taken
in that direction, the unfair labour practice to discharge or dismiss such
employee on any of these grounds mentioned in Item 1 of Schedule IV cannot be
said to have taken place, or on that basis the complaint would be premature, as
submitted by Shri Pai, learned senior counsel for the appellant.

At
this stage, we may also briefly note some of the additional contentions found
in the written submissions filed on behalf of the appellant and the intervenors.
In the written submissions filed on behalf of the intervenors it is contended
that the infinitive "to", as mentioned in various clauses of Item 1
of Schedule IV and in other Items of the same Schedule and also in other Items
of Schedules II and III, would indicate only completed action done by the
concerned party. It is not possible to agree with this contention. As we have
discussed earlier, the word "to" would include any action towards the
final goal of the action. Schedule IV, as noted earlier, speaks about the
general unfair labour practice on the part of employers.

Therein
barring Item no. 9, everywhere we find the user of the Infinitive. Same is the
case with the wording of Schedule II barring Item No. 6 and the wording of
Schedule III. While dealing with this aspect, a Full Bench of Industrial Court
of Maharashtra, in its decision in Revision Application (ULP) No. 2 of 1983,
speaking through its learned Member Gawande, has made the following observations
in paras 11 to 13, which we wholly approve:

"....The
Infinitive with or without adjuncts may be used, like a Noun. When the
infinitive is thus used, like a Noun, it is called the Simple Infinitive. To
discharge or dismiss merely names the action denoted by the Verb discharge or
dismiss, and is used without mentioning any subject. The expression is,
therefore, not limited by person and number as a Verb that has a subject, and
is, therefore, called the Verb Infinite, or simply the Infinitive.

The
Infinitive is a kind of noun with certain features of the Verb, especially that
of taking an object (when the Verb is transitive) and adverbial qualifiers.

In
short, the Infinitive is a Verb-noun (and is called a Gerund). A Gerund is that
form of the Verb which ends in - ing, and has the force of a Noun and a Verb;
it is a Verbal Noun. The word to is frequently used with the Infinitive, but is
not as essential part or sign of it. The Infinitive may be active or passive.
When active, it may have a present and a perfect form, and may merely name the
act, or it may represent progressive or continued action. Then comes the
question of Tense. Here I wish to elaborate by taking an illustration thus :
(1) I speak - The Verb shows that the action is mentioned simply, without
anything being said about the completeness or incompleteness of the action.
Here the Tense is Present Indefinite. (2) I am speaking - The Verb shows that
the action is mentioned as incomplete or continuous, that is, as still going
on. Here the Tense is Present Continuous. (3) I have spoken - The Verb shows
that the action is mentioned as finished, complete or perfect at the time of
speaking. Here the Tense is Present Perfect. (4) I have been speaking - The
Verb shows that the action is going on continuously, and not completed at this
present moment. Here the Tense is Present Perfect Continuous.

12.
Against the background of the above when we read Item 1 of Schedule IV to the
Act, text of which has been already reproduced, it becomes evident that Item 1
starts with the phrase - To discharge or dismiss employees. Thereafter we get
as many as seven sub-items (a) to (g).

If we
were to put only the Literal Construction on the entire wording of Item 1 of
Schedule IV, it becomes clear that in a given case if the alleged unfair labour
practice is that of discharge or dismissal of the employee under all the
sub-items i.e. from (a) to (g) or either of them, the Labour Court has
jurisdiction to entertain such a complaint under Section 28 of the Act.

In
adverting to the Literal Construction and in accepting the interpretation
flowing therefrom, it becomes clear that the action contemplated on the part of
the employer here is an action complete in itself. In other words, if the
employer were to discharge or dismiss an employee under all the aforesaid sub-
items or either of them, the Labour Court has jurisdiction to entertain a
complaint. Implicit in this is the fact that the employer-employee relationship
is severed by an order of discharge or dismissal, before the lodging of the
complaint. That such a complaint will lie, that such a complaint is competent
and that the Labour Court has jurisdiction to entertain such a complaint are
points in respect of which the contenders before us do not join issue.

13.
However, the question posed for the determination of the Full Bench is wide.

After
taking into consideration the interpretation-aspect as also the grammer-aspect,
I am of the view that it will not be proper to put a mere Literal Construction
on the wording of Item 1 of Schedule IV to the Act. I have no doubt in my mind
in observing that here the language is not plain. It does not admit of but one
meaning. Therefore, one would be justified in adverting to the Mischief Rule
also the Golden Rule while interpreting the words appearing in Item 1 of
Schedule IV. I may further observe that in doing so, if the choice is between
two interpretations, the narrower of which would fail to achieve the manifest
purpose of the legislation, we should avoid a construction which would reduce
the legislation to futility. In such a situation we should rather accept the
bolder construction based on the view that the legislature would legislate only
for the purpose of bringing about an effective result.

Further,
as observed earlier, where alternative constructions are equally open, that
alternative is to be chosen which will be consistent with the smooth working of
the system which the Statute purports to be regulating; and that alternative is
to be rejected which will introduce uncertainty, friction or confusion into the
working of the system. Lastly, it cannot be forgotten that the Statute shall
have to be read as a whole." The aforesaid observations in Full Bench
judgment of Maharashtra Tribunal are well sustained on the scheme of the Act,
which we have discussed earlier. Consequently, it is not possible to agree with
the written submission on behalf of the intervenors that only completed actions
are contemplated by the concerned clauses of Item 1 of Schedule IV. They, on
the contrary, suggest that complaint can be filed not only when the final act
of unfair labour practice is committed, but even at a stage where any firm
action is taken towards reaching the final goal of discharging or dismissing an
employee on any of the grounds mentioned in clauses (a) to (g) of Item 1 of
Schedule IV. So far as the other items of Schedule IV are concerned, it is
difficult to appreciate how a complaint cannot be filed if the concerned
employer has taken a firm step towards the ultimate object of completing the
alleged unfair labour practice as mentioned in Items 2 to 10 of the said
Schedule.

Reliance
placed on the Whisper University Law Dictionary defining the term
"dismiss" also is of no avail as though the word "dismiss"
may indicate performance of a completed action, any unfair labour practice to
dismiss, as discussed earlier, would include any firm step or attempt made
towards the ultimate goal of dismissing the concerned workman.

Submission
made on the scheme of Section 30(2) to the effect that interim order can be
passed in connection with the practice complained of also cannot advance the
case of the appellant for the simple reason that if the practice complained of
is of any firm step taken by the employer towards the ultimate object of
dismissing or discharging the employee on any of the grounds covered by clauses
(a) to (g) of Item 1 of Schedule IV, interim relief can be granted in
connection with such practice complained of and would not mean that till the
practice gets fructified and translated into final act of dismissal or
discharge, the Labour Court cannot pass appropriate interim relief orders under
Section 30(2) as submitted in the written submissions.

We may
also briefly refer to the summary of arguments by Shri. G.B. Pai on behalf of
the appellant as filed on 4.9.1995. Most of the submissions contained therein
are already dealt with by us in the earlier part of this judgment. However,
some additional aspects mentioned therein are required to be considered. In
paragraph IV (i) it is submitted that the term "unfair labour
practice" denotes a habitual practice by the employer, and not isolated
events.

For
that purpose, emphasis is placed on the dictionary meaning of the word
"practice" which means often, customarily or habitually. It is true that
the word "practice" cannotes repeated events but that will not affect
the construction to be placed on the words "unfair labour practice to
dismiss or discharge" as implied in Item 1 of Schedule IV. When a
contemplated action on the part of the employer to dismiss or discharge an
employee on any of the grounds mentioned in that item is firmly taken, the
employee can as well show that this type of action on the part of the employer
is a habitual action or by way of a general practice. But even apart from such
a general practice, it can be alleged and demonstrated that the employer is
following such a practice at least for the complainant. It is not as if a
practice which is not repetitive in character can never amount to an unfair labour
practice as contemplated by Schedule IV, Item 1. In fact, whether such an
alleged practice should be based on repetitive acts or a single act is strictly
not relevant for deciding the question whether an attempt towards commission of
such a practice, when the final order of dismissal or discharge has not been
passed, can be made subject-matter of the complaint under the Maharashtra Act.

Similarly,
contention found in paragraph IV(ii) that the words "discharge or
dismissal" mean the final order of sending away or removing a person also
cannot be of any assistance to the appellant for the simple reason that we are
not concerned with the connotation of the words "dismiss or
discharge". The question is whether an attempt towards ultimate dismissal
or discharge by way of taking a firm step towards it can be the subject-matter
of a complaint under the Maharashtra Act. For deciding that question the entire
scheme of the Act becomes relevant including its preamble, as discussed
earlier. No conclusion can be based only on the meaning of the words
"discharge or dismissal" as tried to be suggested. Similarly,
contention in sub-paragraph (vii) of paragraph IV relying on a decision of this
Court in Bharat Iron Works vs. B.B. Patel (1976 (2) SCR 280) is also of no
assistance to the appellant as the said decision refers to the nature of proof
required for proving the allegation of mala fide or victimisation. That stage
would come once the complaint on the ground of victimisation is taken up for
consideration on merits at final hearing stage or at stage of interim relief,
as the case may be.

The
submission made in paragraph V(i) on the construction of the words "is
engaging in" as found in Section 28 also cannot be countenanced for the
simple reason that even in the said paragraph, it is mentioned that some of the
unfair labour practices may be of continuing nature and for that purpose
emphasis is placed on some of the items mentioned in Schedules II, III and IV.
However, even from the scheme of the schedules it becomes clear that any
present continuous act of engaging in the alleged unfair labour practice would
be covered by the term "is engaging in". We have already discussed in
detail the correct connotation of these words in the earlier part of this
judgment. For the reasons recorded by us therein, this submission is found to
be devoid of any substance. In sub- paragraph (iii) of paragraph V, it is
submitted that the aim of prevention is achieved by :

(a) directing
the employer as an interim measure to withdraw the practice complained of and
if the complaint is proved, in the final order of quashing the order of
dismissal, and also (b) by prescribing a penalty which penalty is to act as a
deterrent and prevent the commission of unfair labour practice.

We
fail to appreciate how this will affect the correct connotation of the word
"prevention". If the alleged unfair labour practice of discharge or
dismissal of an employee is to be prevented, then as discussed earlier, it must
necessarily contemplate an intervention of the competent Labour Court at a
stage prior to the actual commission of such unfair labour practice.

Reference
made in paragraph VI to the Bombay High Court's judgments also cannot be of any
avail as they were based on the view which was accepted by the learned Single
Judge of the High Court of Bombay at Nagpur which has rightly been overturned
by the Division Bench of the Bombay High Court in the judgment under appeal on
a correct interpretation of the relevant provisions of the Act.

Therefore,
the earlier view taken by the learned Single Judges of the Bombay High Court
cannot be said to be well- sustained. For all these reasons, the appellant has
made out no case for our interference in this appeal.

Before
parting with this case, however, we must strike a note of caution, as has been
done by the Division Bench of the Bombay High Court. It could not be gainsaid
that the employers have a right to take disciplinary actions and to hold
domestic enquiries against their erring employees. But for doing so, the
standing orders governing the field have to be followed by such employers.
These standing orders give sufficient protection to the concerned employees
against whom such departmental enquiries are proceeded with. If such
departmental proceedings initiated by serving of chargesheets are brought in
challenge at different stages of such proceedings by the concerned employees
invoking the relevant clauses of Item 1 of Schedule IV before the final orders
of discharge or dismissal are passed, the Labour Court dealing with such
complaint should not lightly interfere with such pending domestic enquiries
against the concerned complainants. The Labour Court concerned should
meticulously scan the allegations in the complaint and if necessary, get the
necessary investigation made in the light of such complaint and only when a
very strong prime facie case is made out by the complainant appropriate interim
orders intercepting such domestic enquiries in exercise of powers under Section
30(2) can be passed by the Labour Courts. Such orders should not be passed for
mere askance by the Labour Courts. Otherwise, the very purpose of holding
domestic enquiries as per the standing orders would get frustrated.